Aggarwal & Aggarwal
[2020] FCCA 2659
•10 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
Aggarwal & Aggarwal [2020] FCCA 2659
File number:
MLC 4104 of 2018
Judgment of:
HER HONOUR JUDGE C. E. KIRTON QC
Date of judgment:
10 December 2020
Catchwords:
FAMILY LAW – Children – interim parenting – father’s application for parenting orders – application in a case by the father seeking urgent reinstatement of spend time arrangements – unilateral suspension of time by the mother – significant family violence perpetrated by the father against the mother – allegations of physical and sexual assault during the marriage – father charged with and pleaded guilty to unlawful assault against the mother – cultural issues – father of Indian ethnicity – final family violence order protecting the mother and the child against the father – family violence order extended for three years – family report recommends that father’s time with the child be contingent upon the father attending therapy with a culturally informed therapist – father does not attend for 6 months – father attends on three occasions – applicant’s legal representative fails to disclose to the court – material omission – daytime spend time arrangements suspended by the Court – whether the father should spend time with the child pending final hearing – whether the father poses an unacceptable risk of harm to the child – where the father denies allegations of family violence – where father blames the mother for instances of family violence – father’s attitude of male dominance – where the father lacks insight – cultural barriers to addressing family violence – consideration of s.60CC factors – statutory duty to give greater weight to s.60CC(2)(b) – application of ss.60CC(3)(j) and (k) – best interests of the child as paramount consideration – appointment of an independent children’s lawyer – father’s time with the child suspended until further order – application in a case dismissed.
Legislation:
Family Law Act 1975 (Cth), ss 11F, 60B(1),(2), 60CA, 60CC(2)(a), (b), 60CC(2A), 60CC(3)(a)-(m), 61DA (1)-(4), 62B, 62G(2), 64B(1), 65D, 65DA(2), 68L(2), 102NA
Federal Circuit Court Rules 2001 (Cth), r 13.04
Cases cited:
AMS v AIF (1999) 199 CLR 160
Goode v Goode (2006) 36 Fam LR 422
Keats & Keats [2016] FamCAFC 156.
Marvel v Marvel (2010) 43 Fam LR 348
Mazorski & Albright (2007) 37 FamLR 518
McCall & Clark (2009) FLC 93-405
U v U (2002) 211 CLR 238
Waterford & Waterford [2013] FamCA 33
Number of paragraphs:
111
Date of hearing:
18 September 2020
Place:
Melbourne
Counsel for the Applicant:
Ms Foong
Solicitor for the Applicant:
Mirabellas Solicitors
Counsel for the Respondent:
Mr Allen
Solicitor for the Respondent:
Knight Family Lawyers
ORDERS
MLC 4104 of 2018 BETWEEN: MR AGGARWAL
ApplicantAND: MS AGGARWAL
Respondent
ORDER MADE BY:
HER HONOUR JUDGE C. E. KIRTON QC
DATE OF ORDER:
10 DECEMBER 2020
THE COURT ORDERS THAT:
1.All extant applications be adjourned to the Federal Circuit Court of Australia on 26 February 2021 at 9.30 am for Mention.
2.Until further order, Order 4(b) of the Interim Orders made 8 November 2018 be suspended.
3.The Applicant Father be at liberty to provide a copy of the Family Report by Dr B, dated 17 December 2019 (Family Report) to Dr C, psychiatrist.
4.The Application in a Case filed by the Applicant Father on 28 August 2020 and the Response filed by the Respondent Mother on 14 September 2020 be dismissed.
5.The parties’ costs of and incidental to the Applicant Father’s Application in a Case filed on 28 August 2020 and the Response filed by the Respondent Mother on 14 September 2020 be reserved.
6.Pursuant to s.68L(2) of the Family Law Act 1975 (Cth) the child X born in 2016 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and the parties make application to Victoria Legal Aid requesting that they make such an arrangement as soon and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments and that:
(a)Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service.
(b)Within 48 hours of notification of such appointment the parties (by their solicitors if represented) provide to the Independent Children’s Lawyer copies of all relevant documents.
(c)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ which is published at ( and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
(d)The Independent Children’s Lawyer prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she may recommend be made as final orders as soon as the Independent Children’s Lawyer is able to, and not less than five business days before the trial.
7.Further to Order 3, copies of the Family Report, if accompanied by a copy of this Order, may be given to:
(a)Any Independent Children’s Lawyer in the proceedings.
(b)A child protection authority.
(c)A State or Territory legal aid authority.
AND that no person release the Family Report, or provide access to the Family Report, to any other person.
AND THE COURT NOTES THAT:
A.If in any proceedings there are allegations of family violence and the provisions of s. 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (Scheme) for representation but any such application must be made at least 12 weeks prior to the final hearing.
C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D.If s. 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
E.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
F.In the event of non-compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a)The filing of documents;
(b)The payment of any applicable filing setting down, mediation or enforcement fee or fees; and/or
(c)Any other procedural issues;
The application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
G.To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial judge, or by another appropriate court officer, shortly prior to the final hearing date.
IT IS NOTED that publication of this judgment under the pseudonym Aggarwal & Aggarwal is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HER HONOUR JUDGE C. E. KIRTON QC:
This is an interim decision in relation to parenting proceedings concerning the parties’ child X, born in 2016 (X), now aged 4. The Applicant is the Father and the Respondent is the Mother of X. This interim decision concerns an Application in a Case filed by the Father on 28 August 2020 seeking to enforce Orders made on 8 November 2018 for X to spend time with the Father each Sunday from 9.30 am to 1:00 pm. The Father also seeks make up time with X. On 17 September 2020 the Father also filed an Outline of Case seeking to discharge the Orders made on 8 November 2018 and seeking overnight time with X each weekend from 9.30 am Saturday to 5:00 pm Sunday.
Subsequent to the Orders made on 8 November 2018 a Family Report was prepared which made significant recommendations in relation to the Father, as a result of the Father’s persistent abusive behaviour towards the Mother. In particular the Family Report recommended that the final hearing be adjourned for a period of six months to enable the Father to undertake individual therapy with a culturally informed therapist. The Family Report writer Dr B, recommended that the Father undergo counselling with a psychiatrist Dr C. Dr B also recommended in the Family Report that X’s time with the Father be contingent upon the Father attending such counselling.
The Family Report was released to the parties by Order of the Court on 3 February 2020. On 3 August 2020 I made Orders listing the proceeding for final hearing on 15 April 2021. It was also ordered that the Father was to continue seeing his nominated counsellor and was to update the Mother’s solicitors when he had completed his counselling[1].
[1] Order 17, Orders 3.8.20.
The Father filed the Application in a Case on 28 August 2020 and deposed to two Affidavits in support of the Application in a Case without providing any evidence that he was undertaking any counselling as recommended in the Family Report or otherwise. The Father also sought an urgent hearing of the Application in a Case filed on 28 August 2020.
ISSUES TO BE DETERMINED
The following interim issues are in dispute between the parties:
·The time the Father should spend with X pending the final hearing.
·Whether an Independent Children’s Lawyer should be appointed pursuant to s.68L of the Family Law Act 1975 (Cth) (Act) for X to be independently represented.
SYNOPSIS
I have determined that:
·Until further order, Order 4(b) of the Interim Orders made on 8 November 2018 remain suspended.
·An Order will be made pursuant to s.68L of the Act for X to be independently represented and Victoria Legal Aid will be requested to arrange such representation.
BACKGROUND
The Father was born in India in 1989 and is aged 31. After completing school the Father moved to Australia to complete a diploma. The paternal grandparents continue to reside in India[2]. The Father has worked as a labourer[3] and has subsequently obtained work as a factory worker[4].
[2] Family Report, Dr B, 17.12.19 (Family Report) at [6].
[3] Father’s Affidavit, affirmed 13.4.18 and filed 17.4.18 at [32].
[4] Father’s Affidavit, affirmed 27.8.20 and filed 28.8.20 at [68].
The Mother was born in Country D in 1990 and is aged 30. The maternal grandparents were born in Country E and later moved to Country D. The Mother immigrated with her family to Australia at the age of thirteen. The Mother completed year 12 and then completed a course of study, before working with her father in his business. More recently the Mother has commenced working with the Employer F[5].
[5] Family Report at [3]-[4].
The parties met via Facebook in 2015 and commenced living together in Suburb G in 2016. The parties married in 2016 and X was born in 2016.
In early 2017 the parties moved to Suburb H. The Mother’s parents live nearby in Suburb J[6].
[6] Father’s Affidavit, affirmed 13.4.18 and filed 17.4.17 at [7].
The parties separated on 9 August 2017[7]. The separation arose in circumstances of family violence which occurred on 9 August 2017 in the presence of X (9 August 2019 Incident). The Police attended the parties’ home on 9 August 2017 and on 10 August 2017 an Interim Intervention Order was made at the Magistrates’ Court at Suburb K on the Application of Victoria Police, with the Father named as the Respondent and the Mother and X named as the Affected Family Members. On 14 December 2017 the Father consented to a Final Intervention Order at the Magistrates’ Court at Suburb K for a period of twelve months[8]. The Father was also charged with unlawful assault upon the Mother as a result of the 9 August 2017 Incident. On 28 November 2017 the Father pleaded guilty at the Magistrates’ Court at Suburb K to unlawful assault. The Father was sentenced, without conviction, to a one year good behaviour bond and gave an undertaking to participate in a men’s behaviour change program. The Father subsequently enrolled in a Men’s Behaviour Change Program with L Counsellors (Suburb M)[9].
[7] Father’s Affidavit affirmed 13.4.18 and filed 17.4.18 at [8]-[10]; Mother’s Affidavit affirmed 21.6.18 and filed 25.6.18 at [9]-[13].
[8] Father’s Affidavit, affirmed 13.4.18 and filed 17.4.18 at [8]-[9] and Annexure “-1”.
[9] Father’s Affidavit, affirmed 13.4.18 and filed 17.4.18 at [11]-[12] and Annexures “-2” and “-3”.
At the time of separation X was 11 months old and he remained living with the Mother.
PROCEDURAL HISTORY
This proceeding was commenced by the Father by way of an Initiating Application filed on 17 April 2018 (Initiating Application). The Father sought Interim and Final Orders in the Initiating Application that the parties have equal shared parental responsibility for X and that the Father spend time and communicate with X at such times as determined by the Court.
The Father also filed a Notice of Risk on 17 April 2018 (Father’s Notice of Risk). In the Father’s Notice of Risk the Father alleged that there was a risk of the Mother denigrating the Father to X[10]. In support of the Initiating Application the Father filed an Affidavit on 17 April 2018[11] (Father’s April 2018 Affidavit).
[10] Father’s Notice of Risk at [4(d)].
[11] Affidavit of the Father, affirmed 13.4.18 and filed 17.4.20.
The Mother’s Solicitors filed a Notice of Address for Service on 7 May 2018. The proceeding first came before the Court in the Duty List on 28 May 2018. On that occasion the Court Ordered that the proceeding be adjourned to the Duty List on 10 July 2018.
The Mother filed a Response on 25 June 2018 (Response). In the Response the Mother sought interim and final orders that may be relevantly summarised as follows:
(a)The Mother have sole parental responsibility for X;
(b)X live with the Mother; and
(c)The Father have supervised time with X each Sunday between 10:00 am and 12:00 pm.
On 25 June 2018 the Mother also filed a Notice of Risk (Mother’s Notice of Risk). The Mother’s Notice of Risk made allegations that the Father had subjected the Mother to serious family violence, including physical and sexual assaults, some of which had occurred in the presence of X. The Mother’s Notice of Risk also included allegations that X was at risk due to the mental illness suffered by the Father and also the Father’s drug abuse. On 25 June 2018 the Mother also filed an Affidavit in support of the Response (Mother’s June 2018 Affidavit).
On 2 July 2018 the Father filed an Affidavit responding to the Mother’s June 2018 Affidavit (Father’s July 2018 Affidavit)[12].
[12] Affidavit of the Father, dated 29.6.18 and filed 2.7.18. It is not possible to ascertain whether this document was sworn or affirmed as the witness, an Australian Legal Practitioner, failed to identify in the execution clause of the Affidavit or in any of the Annexures whether this document is alleged to be sworn or affirmed.
On 10 July 2018 the proceeding came before the Court in the Duty List. The Court made orders that:
(a)The proceeding be adjourned to 8 November 2018 for Mention.
(b)Pursuant to s.11F of the Family Law Act 1975 (Cth) the parties and X attend upon a Family Consultant of the Court for the purposes of a Child Inclusive Conference on 19 October 2018.
(c)Pursuant to the Order in sub-paragraph (b) the Family Consultant provide a written memorandum to the Court and the parties as soon as practicable.
On 10 July 2018 the Court also made Orders by consent which may be relevantly summarised as follows:
(a)X live with the Mother.
(b)The parties do all things reasonably necessary to register at the N Contact Centre.
(c)Upon acceptance into that service the Father spend time with X on a supervised basis for one hour each fortnight on a day nominated by the director of the N Contact Centre.
(d)Prior to spending time with X pursuant to the Order in sub-paragraph (c), the Father was to spend time with X supervised by O Contact Centre from 11:00 am to 12:00 pm each alternate Tuesday at the Father’s expense.
(e)Within seven days the parties do all things necessary to enrol in an accredited post separation parenting course and attend and complete that course.
(f)Neither party denigrate or insult, or allow another person to denigrate or insult the other parent or the other parent’s relatives or friends, to or in the presence or hearing of X.
On 19 October 2018 the parties and X attended a Child Inclusive Conference at the Court. Family Consultant P subsequently prepared a Child Inclusive Conference Memorandum to Court, dated 19 October 2019 (Child Inclusive Conference Memorandum).
On 8 November 2018 the Court made Orders (8 November 2018 Orders) which may be relevantly summarised as follows:
(a)The proceeding be adjourned to 4 February 2019 for Mention.
(b)The proceeding be listed for final hearing on 7 February 2020 with an estimated hearing time of one day (Final Hearing).
(c)The interim consent orders made on 10 July 2018 were discharged, save for the order for X to live with the Mother and the mutual non-denigration order.
(d)X spend time and communicate with the Father:
(i)For six supervised visits at the Suburb Q Contact Centre at times as directed by the contact service;
(ii)Upon completion of the six supervised visits, and completion of the Order referred to in sub-paragraph (e), on an unsupervised basis at the Father’s home each Sunday from 9.30 am to 1:00 pm, with changeover to occur at the Suburb R Police Station (Order 4(b)).
(e)The Father attend the ‘Bringing Up Great Kids in the Early Years’ Parenting Program in Suburb S (T Family Services) and provide a certificate of completion to the Mother’s solicitor.
(f)Trial directions were made for the Final Hearing.
(g)Pursuant to s.62G(2) of the Act the parties and X attend upon a Family Consultant nominated by the Regional Coordinator of Child Dispute Services of the Court for the purposes of the preparation of a Family Report to be given to the Court not less than 35 days before the Final Hearing.
(h)Ancillary orders in relation to the preparation of the Family Report.
On 4 February 2019 the Court Ordered that the matter be adjourned to 21 May 2019 for Mention.
The next occasion that the proceeding came before the Court was on 15 October 2019. On that date the Court ordered that both parties participate in a form of drug screening regime, to be agreed between the parties, so that whatever test was done by one party was also undertaken by the other party prior to the Final Hearing.
On 6 December 2019 the Mother filed an Affidavit responding to the Father’s July 2018 Affidavit (Mother’s December 2019 Affidavit).
On 3 February 2020 the Court made a Chambers Order pursuant to r.13.04 of the Federal Circuit Court Rules 2001 (Cth) releasing the Family Report by Dr B, dated 17 December 2019 (Family Report). On 6 February 2020 the Court Ordered that the proceeding be adjourned to 3 August 2020 for Mention.
On 3 August 2020 at the Mention of this proceeding Mr Mirabella appeared as Solicitor for the Father and Mr Knight appeared as Solicitor for the Mother. A Minute of Consent Orders, signed by the Solicitors for the Father and the Mother was emailed to my Chambers (Minute of Consent Orders). Consent Orders were made substantially in accordance with the Minute of Consent Orders when the matter was mentioned by videoconference on 3 August 2020. Relevantly, the Minute of Consent Orders made no mention of the Mother allegedly being in breach of Order 4(b) of the 8 November 2018 Orders, as was subsequently alleged by the Father only three weeks later. Further no request was made by the Father’s Solicitor for a listing of an interim defended hearing in relation to the matters the subject of the Father’s Application in a Case subsequently filed on 28 August 2020.
On 3 August 2020 Orders were made that:
(a)The proceeding be adjourned to 1 December 2020 for Mention.
(b)The proceeding be listed for Final Hearing on 15 April 2021 with an estimated hearing time of two days.
(c)Final Hearing trial directions were made.
(d)Pursuant to s.62G(2) of the Act an updated Family Report be prepared to be given to the Court no less than 35 days before the Final Hearing.
(e)Ancillary orders in relation to the updated Family Report.
(f)The Father was to continue seeing his nominated counsellor and was to update the Mother’s Solicitors when he had completed his counselling[13].
[13] Orders 3.8.20, Order 17.
Some three and a half weeks later on 28 August 2020 the Father filed an Application in a Case (Father’s Application in a Case) seeking the following orders:
(a)The Father’s Application in a Case be listed urgently[14].
(b)That there be “immediate reinforcement of and compliance with” Order 4(b) of the 8 November 2018 Orders “with the Father to resume spending time with X”; and
(c)The Father be afforded make up time for the time he did not spend with X in accordance with Order 4(b) of the 8 November 2018 Orders[15].
[14] Father’s Application in a Case Coversheet.
[15] Father’s Application in a Case, Part D at [6].
On 28 August 2020 the Father also filed an Affidavit[16] (Father’s August 2020 Affidavit). In the Father’s August 2020 Affidavit the Father alleged that the Mother had been in breach of Order 4(b) of the 8 November 2018 Orders:
(a)On 8 September 2019 and between 22 September 2019 and 27 October 2019[17].
(b)Between 3 November 2019 and 24 November 2019[18].
(c)On 19 January 2020 and 16 February 2020[19].
(d)On 15 March 2020 and 22 March 2020[20]; 12 April 2020[21]; 31 May 2020[22]; and 21 June 2020[23].
(e)From 5 July 2020[24].
[16] Affidavit of the Father, affirmed 27.8.20, filed 28.8.20.
[17] Father’s August 2020 Affidavit at [9]-[19].
[18] Father’s August 2020 Affidavit at [23]-[24].
[19] Father’s August 2020 Affidavit at [29]-[30] and [32]-[33].
[20] Father’s August 2020 Affidavit at [38].
[21] Father’s August 2020 Affidavit at [45]-[46].
[22] Father’s August 2020 Affidavit at [50].
[23] Father’s August 2020 Affidavit at [52]-[53].
[24] Father’s August 2020 Affidavit at [55]-[62].
Relevantly, the Father’s August 2020 Affidavit failed to mention that subsequent to the 8 November 2018 Orders the Family Report had been released by Order of the Court on 3 February 2020. The Family Report contained some serious recommendations in relation to the Father’s continued contact with X, which will be referred to in detail later in this Judgment.
At the time the Father’s solicitors filed the Father’s Application in a Case and the Father’s August 2020 Affidavit they forwarded a letter addressed to The Registrar of the Court, dated 28 August 2020 (Father’s Solicitor’s Letter). The Father’s Solicitor’s Letter stated (omitting formal and irrelevant parts) as follows:
[…]
We advise that Orders were made on 8 November 2018 enabling the Applicant to have contact with his son, [X] every Sunday.
The [Mother] has a history of repetitive beaching of the Orders often cancelling contact between the Father and Child at the last minute.
Recently, the [Mother] has denied the [Father] of having contact with the Child, in view of the current COVID-19 pandemic. Consequently, the [Father] has had no contact with his son since June 2020.
The [Father] is in isolation like most Victorians. He is an essential worker and adheres to strict social distancing practices and undergoes a mandatory COVID-19 test every fortnight and has not tested positive on one occasion. The [Mother] has unilaterally decided to withhold the Child from the [Father] despite the current Court Orders in place.
In view of the [Mother’s] previous breaching of the Orders, the Applicant is concerned she is attempting to frustrate contact with the Child at any given opportunity.
The Father’s Solicitor’s Letter relevantly omitted to mention the circumstances of this case, being that the Family Report had had been released by Order of the Court on 3 February 2020 and that it contained some serious recommendations in relation to the Father’s continued contact with X.
On 2 September 2020 a Registrar conducted a telephone Mention of this matter. On that occasion Ms Saoud appeared as Solicitor for the Father and Mr Knight appeared as Solicitor for the Mother. The Registrar made the following Orders:
(a)The Father’s Application in a Case be listed for an Interim Defended Hearing before myself on 18 September 2020.
(b)The Mother file and serve by 4:00 pm on 11 September 2020:
(i)A Response to the Father’s Application in a Case;
(ii)Any affidavit the Mother wished to rely upon in support of the Response to the Father’s Application in a Case.
(c)The Father file any affidavit in reply to the Mother’s affidavit filed pursuant to sub-paragraph (b) by 4:00 pm on 16 September 2020.
(d)By 2:00 pm on 17 September 2020 each party file and serve an Outline of Case which contains a list of the documents to be relied upon, a brief dot point summary of the party’s submissions and a minute of the precise orders sought.
On 14 September 2020 the Mother filed a Response to the Father’s Application in a Case (Response to Application in a Case) seeking interim orders that:
(a)The Father spend time with X by video call twice a week.
(b)The time the Father spend with X be resumed upon the completion of the Online Asthma Course through First Aid CPR and Training and evidence of completion to be given to be produced to the Mother or the Mother’s solicitors.
On 14 September 2020 the Mother also filed an Affidavit[25] (Mother’s September 2020 Affidavit) responding to the Father’s August 2020 Affidavit. The Mother’s September 2020 Affidavit was not witnessed at the time of filing due to the COVID-19 restrictions and was filed with the Court in accordance with Joint Practice Direction 2: JPD of 2020 – Special Measures in response to COVID-19 Electronic filing, Viewing of Subpoenas, Annexures to Affidavits, Signatures on Documents to Affidavits, and Fees (Joint Practice Direction 2).
[25] Affidavit of the Mother dated and filed 11.9.20
On 17 September 2020 the Father filed an Affidavit responding to the Mother’s September 2020 Affidavit (Father’s September 2020 Affidavit). The Father’s September 2020 Affidavit was filed in accordance with Joint Practice Direction 2. On 17 September 2020 the Father filed an Outline of Case (Father’s Outline of Case) in accordance with the Registrar’s Orders made on 2 September 2020[26]. The Mother did not file an Outline of Case in accordance with the 2 September 2020 Orders.
[26] Order 4, Orders 2.9.20.
The Father’s Outline of Case sought interim orders which may be relevantly summarised as follows:
(a)That Order 4(b) of the 8 November 2018 Orders be discharged.
(b)The Father have unsupervised time with X each weekend from 9:00 am Saturday to 5:00 pm Sunday, with changeovers to occur at the Suburb M Police Station.
(c)The Father’s time with X occur notwithstanding X or the Mother being unwell, save that in the event that X is suffering a serious illness or injury including:
(i)a life-threatening illness or injury; or
(ii)a condition that requires hospitalisation;
then the Mother is to provide a detailed medical certificate to the Father’s solicitors.
(d)Both parents are to follow all recommendations of X’s healthcare providers.
(e)For the purposes of giving effect to sub-paragraph (d) the Mother shall:
(i)Provide the Father with a list of all X’s current treating practitioners;
(ii)Keep the Father updated of any new practitioners; and
(iii)Do all acts and things necessary to authorise any of X’s healthcare providers to communicate with the Father.
(f)The parties have leave to provide a copy of the orders to any of X’s treaters.
(g)The parties notify each other as soon as practicable of any medical emergency, illness or injury suffered by X whilst in their care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other party about the condition and treatment of X.
(h)The Mother disclose the residential address of X to the Father.
(i)If either parent changes their contact number or address they must notify the other parent at least 24 hours prior to the change.
(j)An Independent Children’s Lawyer be appointed for X pursuant to section 68L of the Act.
(k)In the event the Mother does not provide X to the Father during Court ordered time, the Father be at liberty to apply for X to live with him on a full-time basis.
The Father did not file an Amended Application in a Case to reflect the interim orders sought in the Father’s Outline of Case.
The proceeding came before me for an urgent interim defended hearing on 18 September 2020 (Hearing). The Hearing was conducted remotely and electronically via Microsoft Teams video conference due to the restrictions in force in the State of Victoria and Metropolitan Melbourne, as a result of the global pandemic of COVID-19. Both the Applicant and the Respondent were represented by Counsel.
On 18 September 2020 the following Orders were made:
(a)Until further order, Order 4(b) of the 8 November 2018 Orders be suspended.
(b)The Applicant Father be at liberty to provide a copy of the Family Report to Dr C, psychiatrist.
(c)Judgment in relation to the Father’s Application in a Case be reserved.
(d)The parties’ costs be reserved.
PROPOSALS OF THE PARTIES
Father’s Proposals
The Father’s Counsel proceeded with the Father’s application in accordance with the orders sought in the Father’s Application in a Case. There was no application to amend the Father’s Application in a Case to seek the Orders sought in the Father’s Outline of Case.
Documents Relied on by Father
The Father’s Outline of Case states that the Father relied upon:
(a)Documents filed by the Father as follows: Initiating Application; Father’s April 2018 Affidavit; Father’s Notice of Risk; Father’s June 2018 Affidavit; Father’s Application in a Case; Father’s August 2020 Affidavit; and the Father’s September 2020 Affidavit.
(b)Documents relied upon by the Mother as follows: Response; Mother’s June 2018 Affidavit; Mother’s Notice of Risk; Notice of Request to Inspect, filed on 4 December 2019; Mother’s December 2019 Affidavit; Mother’s September 2020 Affidavit; and the Response to Application in a Case.
(c)The Family Report.
Mother’s Proposal
Counsel for the Mother advised the Court at the Hearing that when the Father provided evidence that he was complying with the recommendation of the Family Report that he was undergoing counselling, the Mother would consent to the continuation of Order 4(b) of the 8 November 2018 Orders[27].
[27] Transcript P11:L31-34.
Documents Relied on by the Mother
The Mother relied on the following documents:[28]
(a)Response to Application in a Case; and
(b)Mother’s September 2020 Affidavit.
[28] Transcript P10:L23-35.
THE LAW
The principles governing the Court’s decision in this proceeding are set out in Part VII of the Act. The Court in determining this application must consider what orders are in X’s best interests: s.60CA of the Act. What this means in individual cases is determined by a number of statutory provisions.
The objects of Part VII of the Act are set out in s.60B(1) and assist in clarifying what Part VII aims to achieve to ensure that the best interests of children are met. There are also principles that underlie these statutory objects: s.60B(2).
Section 65D of the Act gives the Court power to make a parenting order which is defined by s.64B(1).
In determining what is in X’s best interests the Court must consider the matters set out in s.60CC of the Act. Section 60CC sets out the primary and additional considerations that the Court is to take into account in determining what is in the best interests of X. Each of those matters where relevant must be considered and assessed in the context of the respective proposals. The Court must then determine which of the proposals is in X’s best interests.
The Court is not bound by the parties’ respective proposals (AMS v AIF[29] and U v U[30]).
[29] (1999) 199 CLR 160.
[30] (2002) 211 CLR 238.
In applying the primary considerations the Court is to give greater weight to the considerations set out in s.60CC(2)(b): s.60CC(2A).
The Full Court in Goode v Goode[31] mandated that the legislative pathway must be followed in all parenting cases and set out the procedural steps to be followed in interim proceedings[32]. It was noted by the Full Court that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place[33].
[31] (2006) 36 Fam LR 422.
[32] Ibid., 445, at [81]-[82].
[33] Ibid., 445, at [82].
In Marvel v Marvel[34] the Full Court made the following obiter comments:
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing[35].
[34] (2010) 43 Fam LR 348.
[35] Ibid., at [120].
In Keats & Keats[36] the Full Court held in respect of interim proceedings:
[9][…] that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected[37].
[36] [2016] FamCAFC 156.
[37] Ibid., at [9].
An interim hearing is therefore by its very nature a curtailed hearing. Evidence is limited and the matter is decided on the papers.
I will first consider the primary considerations of the Act.
Section 60CC(2)(a)
The benefit to the child of having a meaningful relationship with both of the child's parents
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford[38], Mazorski & Albright[39] and McCall & Clark[40].
[38] [2013] FamCA 33.
[39] (2007) 37 FamLR 518.
[40] (2009) FLC 93-405.
In the Family Report Dr B reported:[41]
88.X presented as a confident and happy child during his interaction with each parent. He was observed to enjoy his time with his father and would benefit from spending time with him in the future. Research shows that children benefit from parenting arrangements with fathers, even when there is significant conflict between the parents, if the fathers show an effective parenting style.
[…]
91.X appeared to have positive and healthy attachment to his mother. From observation, he turned to his mother as a main source of comfort. He was able to separate from his mother without anxiety and welcomed her back after a period of separation. X’s attachment was also indicated by his confidence and capacity to deal with a number of new situations during the session.
[41] Family Report at [88] and [91].
I therefore conclude that X has established a meaningful relationship with both of his parents. It was not disputed at the Hearing that X should have a meaningful relationship with both parents.
Section 60CC(2)(b)
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
I refer to the discussion in relation to s.60CC(3)(j) and (k).
The Child Inclusive Conference Memorandum records that at the time of interview on 19 October 2018 the Father had completed both a Men’s Behaviour Change Program[42] and a Parenting Orders Program[43].
[42] Child Inclusive Conference Memorandum, Risk Factors Family Violence, p2.
[43] Child Inclusive Conference Memorandum, Future Directions,
In the Family Report Dr B identified issues in dispute and issues identified during the assessment, as including:[44]
Risks posed by the father having contact with the mother as indicated by the extension of the intervention order in early 2019 for three years and presenting behaviours including denial of allegations of family violence and his deflection of blame onto the mother.
Risks of future emotional harm to X due to his exposure to the ongoing parental conflict.
Concerns about the father’s parenting capacity, reverting to deception and indulgence as a means of behaviour management.
The impact of the parental conflict on their capacity to engage in co-parenting relationship.
[44] Family Report, Issues in Dispute and Issues Identified During the Assessment, pp 8-9.
In the Family Report Dr B reported:[45]
[45] Family Report at [33], [42], [72], [73], [81], [83], [84] and [90].
33.The father denied committing any violence towards the mother during the relationship. [He] claimed that her allegations of violence were lies. He said that she was always moody. He said she would say that he was unhelpful and angry. He said that she made up allegations about him and would later retract them.
[…]
42.The father described the detail of his visits with X. He said that after collecting him, they were buy some takeaway food, including a baby chino, eggs and pasta and half a donut. They generally went to the play centre, but also to the park and shops. It would not appear that he had spent time with X in his home as stipulated in the orders.
[…]
72.There were particular challenges in these adult relationships given the history of family violence. The father’s capacity to engage with the mother was very limited due to his negative attitudes, blame and a lack of responsibility for his behaviours. This raises concerns about the father’s lack of insight and the likelihood of the child being exposed to ongoing parental conflict.
73.In this context, the father’s behaviours function to perpetrate power and control and undermine the safety and security of the mother. There were indications that the mother’s past emotional trauma and fear for her future safety had impacted on her capacity to engage with the father in a co-parenting relationship.
[…]
81.There were however significant concerns about the father’s presentation and the likelihood of future risk to the child. The mother’s detailed description of the history of family violence characterised by physical and sexual assault, and emotional abuse was suggestive of the potency of the family violence. The violence also included demeaning and controlling behaviour and exposure to psychological and emotional harm. His demeaning and false perceptions about the mother were pervasive. His lack of acceptance of responsibility for his abusive behaviour was another indicator of future harm to the mother and child.
[…]
83. The father’s entrenched negative views about the mother was a further indicator of the potency of the psychological abuse. The father’s inability to regulate his negative views raises concerns about his capacity to regulate them in his relationship with his child. If X is exposed to the father’s negative views, it is likely to cause him significant emotional harm.
84.The cultural dynamics contribute to the barriers in the father addressing the family violence. He presented with attitudes of male dominance as indicated by his narrative of self-promotion and demeaning attitude toward the mother.
[…]
90.X’s safety needs must override the importance of his relationship with the father. The risks are particularly high given the history and potency of family violence. The father had not been responsive to the men’s behaviour change group given his entrenched attitudes. It is recommended that he attend a psychiatrist or psychologist with the cultural understanding to assess his capacity to address the behavioural concerns related to the family violence.
(Emphasis added)
In the Family Report Dr B made recommendations that included:[46]
[46] Family Report at p.24.
(a)That [X] lives with the mother.
(b)That the mother has sole parental responsibility for [X] and communicates with the father about significant parenting matters with the orders being reviewed after the father completes counselling.
(c)That [X] spends time with the father according to the current orders.
(d)That the [Father’s] time spent with X is contingent on him attending counselling. Research on family violence in the Indian community highlights the need to order that men who have committed family violence must attend individual therapy. Given the risks posed by the [Father], it is recommended that he attended therapy with a culturally informed therapist, with an option such as Dr C.
(e)That the matter is adjourned for six months to review the father’s progress in counselling.
(f)That an Independent Children’s Lawyer is appointed.
[…]
(Emphasis added)
The Family Report was released to the parties and their legal representatives by Order of the Court made on 3 February 2020. The only evidence before the Court at the Hearing that the Father was undertaking any form of counselling as recommended in the Family Report, was a letter from the Father’s Solicitors to the Mother’s Solicitors, dated 21 July 2020, which was annexed to the Father’s August 2020 Affidavit[47]. That correspondence simply stated:
In the meantime, we advise that our client is undergoing counselling as set out in the Welfare Report.
[47] Father’s August 2020 Affidavit at [60] and Annexure “-23”.
Contrary to the correspondence from the Father’s Solicitors on 21 July 2020, Counsel for the Father advised the Court at the Hearing that she was instructed that the Father’s first consultation with Dr C had not occurred until 30 July 2020. The second consultation was on 1 September 2020 and the third on 15 September 2020[48]. If this is correct, it would mean that:
(a)In the seven months, after the Family Report was released to the parties, the Father had attended counselling on only three occasions; and
(b)On the instructions that Counsel received at the Hearing, the letter from the Father’s Solicitors, dated 21 July 2020 was materially misleading[49] .
(c)This letter advised the Mother’s solicitors that the Father’s was “undergoing” counselling, whereas the Court was advised at the Hearing that the counselling had not commenced with Dr C until 30 July 2020.
[48] Transcript P9:L12-18.
[49] Father’s August 2020 Affidavit at [60] and Annexure “-23”.
In support of the Father’s Application in a Case I would have expected the Father’s solicitors to have filed an affidavit by the Father deposing to his attendance at counselling. I would have also expected an affidavit with a report and affidavit from his counsellor. Given the seriousness of the allegations of family violence made by the Mother against the Father and the findings and recommendations in the Family Report, this is a significant evidentiary omission.
I would also have expected the matters raised in the Father’s Application in a Case and the Father’s August 2020 Affidavit to have been raised by the Father’s solicitors at the Mention of this matter on 3 August 2020.
The Court is now in a more informed position than it was when the 8 November 2018 Orders were made, as it now has the benefit of the Family Report. In light of the findings and recommendations in the Family Report and the absence of any evidence from the Father that the Father is undertaking counselling, or evidence from his counsellor, I am not satisfied that the requirements of s. 60CC(2)(b) are met by Order 4(b) of the 8 November 2018 Orders.
On 18 September 2020 the Court made Orders suspending Order 4(b). That Order will remain suspended until such time as the Court is persuaded by appropriate evidence that the Father is attending upon his counsellor Dr C as recommended and a report is prepared by Dr C and produced to the Court.
The additional considerations are set out in s.60CC(3) of the Act. I will now consider the additional considerations which are relevant to this proceeding, taking into account that this is an interim hearing.
Section 60CC(3)(a)
Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
The Family Report writer did not interview X due to his young age[50]. X is presently 4 years old.
[50] Family Report at [74].
X is too young to determine what is in his best interests.
Section 60CC(3)(b)
The nature of the relationship of the child with:
(i) Each of the child's parents; and
(ii) Other persons (including any grandparent or other relative of the child)
Each of the child's parents
I refer to the discussion in relation to s. 60CC(2)(a).
The Mother has been X’s primary caregiver since birth.
In the Family Report Dr B reported that:[51]
67.The mother stated that X had begun to develop a close bond with the father. She said that he looked forward to his visits. She was concerned about the interruption to their time when the father decided to spend a three week holiday in India. She said that X missed his father and asked after him during his absence.
Other persons (including any grandparent or other relative of the child)
[51] Family Report at [67].
This is not a relevant consideration.
Section 60CC(3)(c)
The extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) To participate in making decisions about major long-term issues in relation to the child; and
(ii) To spend time with the child; and
(iii) To communicate with the child
Participation in making decisions about major long-term issues in relation to the child
In the Initiating Application the Father seeks interim and final orders that the parties have equal shared parental responsibility for X. In the Response the Mother seeks interim and final orders that the Mother have sole parental responsibility for X.
No interim orders have been made in relation to parental responsibility. The Family Report recommends that the Mother have sole parental responsibility. This matter remains an issue for the Final Hearing.
Opportunity to spend time and communicate with the Children
The issue of the Father spending time with X is the central issue to the Father’s Application in a Case. The Father’s August 2020 Affidavit, the Mother’s September 2020 Affidavit and the Father’s September 2020 Affidavit give contested accounts about events. It is not possible for the Court to the make a determination on an interim basis on these matters in the absence of cross-examination. Nevertheless I make the following observations.
It is evident that the Father was blatantly not complying with Order 4(b) of the 8 October 2018 Orders which required him to spend his time with X at his home. In paragraph 42 of the Family Report[52] the Father described to the Report writer all the places that he took X in breach of Order 4(b). It would seem from this account that the Father did not spend any time at his home with X in compliance with Order 4(b).
[52] See paragraph 63 of this Judgment.
It is therefore unsurprising that the Mother may have become very anxious about where the Father was taking X during the Pandemic and especially during the recent Stage 4 lock down in Metropolitan Melbourne. The Father lives in the suburb where of one of the most significant recent COVID-19 outbreaks took place, being Suburb H where the Suburb H School is located which was a centre of a significant outbreak of COVID-19.
The Father states in the Father’s September 2020 Affidavit that he does not believe that he needs to complete an online asthma course because he is an adult who suffers from asthma and he knows how to use a reliever and what environmental triggers can cause a child to have an asthma attack[53]. This is not an encouraging response from the Father and I am not impressed. Whilst I have not received specific submissions in relation to the benefits of such a course as yet from Counsel for the Mother, it is a matter of common knowledge that asthma may affect adults and children in different ways. It is also a matter of common knowledge that Melbourne is subject to what is known as Thunderstorm Asthma, which media in Melbourne in recent times particularly warn the public about in late spring.
[53] Father’s September 2020 Affidavit at [33].
I would have expected that the Father as a parent, would have embraced any opportunity to further educate himself about a matter relating to his son’s health which could have very serious implications for X. In my view the Father’s attitude towards the Mother is playing a role in the Father’s refusal to undertake an online asthma course.
Section 60CC(3)(f) the capacity of:
(i) Each of the child's parents; and
(ii) Any other person (including any grandparent or other relative of the child);
To provide for the needs of the child, including the emotional and intellectual needs
Each of the child’s parents
The Mother
In the Family Report Dr B reported:[54]
75.[…] X was quite strong willed, and the mother was able to set boundaries. She was able to set limits to say no when he wanted to borrow a DVD and distracted him when he became upset. X responded well and seemed quite use[d] to comply with these limits.
[54] Family Report at [75].
In the evaluation in the Family Report Dr B concluded:[55]
[55] Family Report at [86] and [87].
86.The mother presented as a parent who was child focussed, with notable strengths in her parenting capacity. She was mindful and responsive to X’s needs. She also presented with a level of confidence and assertiveness in her capacity to protect herself and the child. Her resilience was particularly impressive, particularly in the aftermath of the trauma experienced during the relationship.
87.The mother has been cautious about engaging with the father in a co-parenting relationship. The mother’s gatekeeping behaviour was protective in nature, acting out of concern for X’s safety needs in the father’s care her cautious attitude about the father’s spending increased time was responsive to the history of family violence. A co-parenting relationship requires both parties to establish trust and mutual respect, which is unlikely at this stage, given the father’s ongoing denial of harm caused by his behaviour and his demeaning attitude towards the mother.
(Emphasis added)
The Father
In the Family Report Dr B reported:[56]
77.The father was attentive and animated and worked co-operatively with X. X was very comfortable in his father’s company. However, as time progressed there were incidents when the father was unable to say no to X’s persistent requests. Whereas the mother was able to say no when X wanted to take out a DVD, the father gave in and sought to buy it. The father ended up joining the library in order to borrow the DVD.
78.At the end of the session, X was very clingy and did not want to leave his father. The father was unable to manage the situation and began making false promises to encourage X to return to his mother. The father appeared quite powerless in dealing with X’s distress. He shared how he would do anything for his child and offered X an ice cream without being able to carry through with the offer.
[56] Family Report at [77] and [78].
In the evaluation in the Family Report Dr B concluded:[57]
82.The father’s parenting style whilst warm and loving was also characterised by poor boundaries. He avoided setting limits and used trickery to settle X when he was distressed his inability to set limits may polarise him as all good and the mother as the disciplinarian, which is likely to be detrimental for X.
Any other person (including any grandparent or other relative of the child)
[57] Family Report at [82].
This is not a relevant consideration.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the that the court thinks are relevant
X is presently 4 years of age. At the time of the interviews for the Family Report on 12 and 16 December 2019 X was three years and three months of age.
In the Family Report Dr B described X as follows:[58]
75.X was observed at the local library with his mother. X happily explored the environment and was very inquisitive. The mother was very attentive and encouraged him to explore the area. X speech [was] age appropriate with a good vocabulary. He thoroughly enjoyed reading with his mother [and] was able to identify colours and shapes. X had a natural curiosity and was confident in separating from his mother to explore the environment […]
[58] Family Report at [75].
I otherwise refer to the discussion in relation to s.60CC(3)(a).
Any other relevant factors have been discussed elsewhere in this Judgment.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I refer to and adopt the discussion in relation to s.60CC(2)(a), s.60CC(2)(b) and s.60CC(3)(a).
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
The Mother deposed that throughout the relationship she suffered from mental and physical abuse from the Father[59]. In particular the Mother deposed that:
(a)The Father forced the Mother to cease contact with her parents and sisters and he did allow her to invite them to the parties’ wedding[60].
(b)On 21 March 2017 the Father knocked the Mother unconscious and raped her. The Mother reported this incident to Victoria Police on 6 December 2017 and made a statement to the Police. This statement is annexed to the Mother’s June 2018 Affidavit[61]. The Mother made a further statement to Victoria Police in relation to the rape allegation on 28 June 2018. This statement is annexed to the Mother’s December 2019 Affidavit[62].
(c)During the 9 August 2017 Incident the Father hit the Mother across the face and began choking her so that she could not breathe. He also attempted to throw X’s wooden playpen at the Mother whilst X was in close proximity to the Mother. The Father then left the house and withdrew the parties’ savings of $5,000 from their ANZ bank account[63].
(d)The Father assaulted the Mother on numerous occasions by slapping and punching her and pulling her hair[64].
[59] Mother’s June 2018 Affidavit at [7].
[60] Mother’s June 2018 Affidavit at [7].
[61] Mother’s June 2018 Affidavit at [8] and Annexure “-1”.
[62] Mother’s December 2019 Affidavit at [41] and Annexure “-07”.
[63] Mother’s June 2018 Affidavit at [9] and [10] and “-2”.
[64] Mother’s December 2019 Affidavit at [6] and Annexure “-01”.
The Father deposed that he never mentally or physically abused the Mother. The Father denies the Mother’s allegations referred to in sub-paragraphs (a) to (d) of the previous paragraph, although he admits that he withdrew the parties’ savings of $5,000 from their ANZ bank account[65].
[65] Father’s July 2018 Affidavit at [4]-[8].
I otherwise refer to the matters discussed in paragraph 11, where it is noted that the Father pleaded guilty to unlawful assault upon the Mother in relation to the 9 August 2017 Incident on 28 November 2017 at the Magistrates’ Court at Suburb K[66].
Section 60CC(3)(k)
If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account sub-paragraphs (i) to (v)
[66] Father’s April 2018 Affidavit at [11]-[12] and Annexures “-2” and “-3”.
(i) The nature of the order
On 10 August 2017 an Interim Intervention Order was made at the Magistrates’ Court at Suburb K. On 14 December 2017 the Father consented to a Final Intervention Order at the Magistrates’ Court at Suburb K for a period of twelve months[67].
[67] Father’s April 2018 Affidavit at [8]-[9] and Annexure “-1”.
The Family Report records that in early 2019 the Final Intervention Order was extended for a period of three years[68]. The Court has no further information in relation to any extension of the Final Intervention Order in 2019.
[68] Family Report, Issues in Dispute and Issues Identified During the Assessment, p8.
(ii) The circumstances in which the order was made
The circumstances in which the Interim Intervention Order was made on 10 August 2017 and 14 December 2017 arose as a result of the 9 August 2017 Incident. The 9 August 2017 Incident is discussed in paragraph 11 and in relation to s.60CC(3)(j).
(iii) Any evidence admitted in proceedings for the order
There was no evidence before the Court of any evidence admitted in any proceeding involving the Interim Intervention Order made on 10 August 2017 and the Final Intervention Order made on 14 December 2017.
(iv) Any findings made by the court, or in proceedings for, the order
There was no evidence before the Court of any findings by the Magistrates Court at Suburb K in any proceedings involving the Interim Intervention Order made on 10 August 2017 and the Final Intervention Order made on 14 December 2017.
(v) Any other relevant matter;
All matters relevant to this interim judgment have otherwise been considered in these reasons.
Section 60CC(3)(l)
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
This is an interim decision. The orders that I intend to make are consistent with the evidence provided in the Family Report.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
Appointment of an Independent Children’s Lawyer
In this case I consider that it is in the best interests of X that an Independent Children’s Lawyer be appointed pursuant to s.68L(2) of the Act.
Equal Shared Parental Responsibility
Section 61DA of the Act provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child. The presumption can be rebutted if it is otherwise not in the best interest of the child for the child’s parents to have equal shared parental responsibility.
Section 61DA of the Act provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
I refer to the matters in paragraphs 78 and 79. Therefore the matter of equal shared parental responsibility remains a matter for the Final Hearing.
Consideration and Conclusion
In considering this interim decision I have adopted a conservative approach that is not likely to cause harm to X, as suggested by the Full Court for interim matters in Marvel v Marvel[69].
[69] (2010) 43 Fam LR 348, at [120].
I have followed the legislative pathway as require by Goode v Goode[70], to the extent that I have been able, given that this is an interim case and the evidence is untested by cross examination.
[70] (2006) 36 Fam LR 422, at [81]-[82].
I have considered each of the primary considerations in s.60CC(2) and accorded greater weight to the considerations set out in s.60CC(2)(b). I have also considered each of the additional considerations in s.60CC(3) to extent that they are relevant for this interim application. For the reasons set out herein, I determine that Interim Orders that have summarised under the heading ‘Synopsis’ are in the best interests of X as required by s.60CA of the Act. Orders will be made accordingly.
I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Her Honour Judge C. E. Kirton QC.
Associate:
Dated: 10 December 2020
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Family Law
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Evidence
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